may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Wayne C. Boeke, petitioner,
Andrew Ball, petitioner,
Ronald F. Casper, petitioner,
Joseph A. Mason, petitioner,
Commissioner of Public Safety,
Filed March 30, 1999
Wright County District Court
File No. C7-98-1230;
Washington County District Court
File No. C4-98-2641;
Anoka County District Court
File No. C1-98-3729;
Anoka County District Court
File No. C7-98-5789
Michael A. Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 200 Capitol Office Building, 525 Park Street, St. Paul, MN 55103 (for respondent)
Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.
In these consolidated appeals, appellants argue the district court erred in sustaining the revocation of their driver's licenses, insisting that the test results were unreliable because the officers had them continue to blow after the Intoxilyzer registered that it had received an adequate air sample. They also argue that Minn. Stat. § 634.16 (1998) impermissibly shifts the burden of proof to the driver to rebut the state's prima facie showing that the test is reliable. We affirm.
Appellants' driver's licenses were revoked and after implied consent hearings, the district courts sustained all of the revocations. Appellants each filed a notice of appeal. Because appellants raise identical issues, these appeals have been consolidated.
Appellants argue that the commissioner failed to satisfy the requirements of Minn. Stat. § 634.16 (1998) and that the test results should have been suppressed because the officers did not conduct the tests pursuant to their training by the BCA. According to appellants, the officers failed to follow their training when they told appellants to continue blowing after the machine registered zero, because an exercise in the BCA training manual advises officers to tell subjects to stop blowing when the machine registers zero. Appellants claim this practice allowed the officers to manipulate the test results and achieve a higher alcohol concentration reading.
We note that appellants Boeke and Ball have waived any challenge to the test results. At their respective hearings, defense counsel failed to object when the test results were offered. A party may not object on appeal to the admissibility of allegedly improper evidence when the evidence was admitted without objection. State v. Folkert, 354 N.W.2d 583, 585 (Minn. App. 1984). Appellants Boeke and Ball did not properly preserve this issue on appeal.
The results of an infrared breath test are admissible in evidence and deemed reliable and trustworthy when the test is
performed by a person who has been fully trained in the use of an infrared breath-testing instrument * * * , pursuant to training given or approved by the commissioner of public safety.
Minn. Stat. § 634.16 (emphasis added).
Here, the officers all testified that they were trained by the BCA to have drivers fill their lungs and blow until nearly all the air was expelled from the lungs. According to the officers' testimony, this results in a more accurate and reliable test result because the machine is able to measure the driver's deep-lung air. See Brooks v. Commissioner Pub. Safety, 584 N.W.2d 15, 18 (Minn. App. 1998) (noting "the most accurate reading comes from the deep-lung air"), review denied (Minn. Nov. 24, 1998).
Appellants' reliance on the language from the BCA training manual is misplaced. That language is taken from an example self-test located in the back of the BCA manual. This self-test is used to have test operators learn and familiarize themselves with the testing procedures. Because the test subjects start with no alcohol present, it makes little sense when conducting a self-test to have the test operator continue to blow after the machine registers zero.
Importantly, the training manual's language does not require the test operator to have the subject stop blowing once the machine registers zero. The use of the word "may" is permissive and not mandatory. See Minn. Stat. §§ 645.44, subd. 15 (1998) ("'May' is permissive."), 645.44, subd. 16 (1998) ("'Shall' is mandatory."). The officers were not required, as a matter of law, to have appellants stop blowing once the machine registered zero.
The argument that test results may be manipulated by having drivers blow past zero was rejected in Brooks, 584 N.W.2d at 17-18, and Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998). As this court in Weierke, stated:
The implied consent statute does not require testing at the precise point at which a minimum adequate breath sample is provided and it permits testing of a sample that is greater than the minimum adequate sample indicated by the Intoxilyzer machine.
Weierke, 578 N.W.2d at 816; see Brooks, 584 N.W.2d at 20 (stating "implied consent statute permits testing of a sample that is greater than the minimum adequate sample * * * and is silent on the issue of a maximum standard for an adequate breath sample").
The commissioner acknowledged during oral argument that blowing after the machine registers zero may tend to produce higher results, but not always. As the commissioner noted, the first test sample given by appellant Ball was shorter than the second test sample he provided. His first test sample registered a .124 alcohol concentration, while the second sample registered a lower .116 alcohol concentration. The commissioner argues it is just as likely that the higher result, if that is the case, is also the more accurate result.
The purpose of having a test subject blow until nearly all the air is expelled from his lungs is to get the most reliable test result possible by measuring the subject's "deep-lung air." And. as appellants concede, the machine cannot produce an alcohol reading if no alcohol is present in the driver's system.
We conclude that, like the driver in Weierke,
appellant[s have] not shown that a quantity of breath greater than the minimum adequate sample produces a higher alcohol concentration result or that it inaccurately reflects the actual alcohol concentration in the body.
Weierke, 578 N.W.2d at 816 (footnote omitted).
Finally, appellants' claim that their due process rights have been violated because Minn. Stat. § 634.16 impermissibly shifts the burden of proof to the driver by requiring the driver to introduce evidence of the test's unreliability once the state has made a prima facie showing of the test's reliability. We disagree.
In State, Dep't of Pub. Safety v. Habisch, 313 N.W.2d 13, 16 (Minn. 1981), the Minnesota Supreme Court held that requiring the test's opponent to introduce evidence of the test's unreliability after the state made a prima facie showing of the test's reliability "does not put the burden of proof on [the driver]." Thus, requiring appellants to show evidence of unreliability after the state has made a prima facie showing of the test's reliability does not impermissibly shift the burden of proof.
 In the cases of Casper and Mason, counsel stated that he had no objection on the condition that he was not waiving the "ultimate issue" of the test's reliability. This was noted by the court, and appellants Casper and Mason have thus preserved their objection to reliability of the test results on appeal.